Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21154/93

Gerhard Höfler

against

Austria

REPORT OF THE COMMISSION

(adopted on 18 October 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 31-45) . . . . . . . . . . . . . . . . . . . . .5

A. Complaint declared admissible

(para. 31). . . . . . . . . . . . . . . . . . . . .5

B. Point at issue

(para. 32). . . . . . . . . . . . . . . . . . . . .5

C. Article 6 para. 1 of the Convention

(paras. 33-44). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 45). . . . . . . . . . . . . . . . . . . . .6

DISSENTING OPINION OF MM. M.P. PELLONPÄÄ, B. MARXER,

G.B. REFFI, B. CONFORTI, C. BÃŽRSAN, K. HERNDL . . . . . . . .7

APPENDIX I : PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . .8

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 13

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is an Austrian citizen, born in 1949 and resident

in Linz. He was represented before the Commission by

Mr. A. Frischenschlager, a lawyer practising in Linz.

3. The application is directed against Austria. The respondent

Government were represented by their Agent, Ambassador F. Cede, Head

of the International Law Department at the Federal Ministry of Foreign

Affairs.

4. The case concerns the length of administrative criminal

proceedings under the Code of Fiscal Offences. The applicant invokes

Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 6 November 1992 and registered

on 14 January 1993.

6. On 29 June 1994 the Commission (First Chamber) decided, pursuant

to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the

application as regards the applicant's complaint about the length of

the proceedings to the respondent Government and to invite the parties

to submit written observations on its admissibility and merits. It

declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 7 October 1994.

The applicant replied on 22 November 1994. On 20 December 1994 the

Government submitted a supplement to its observations. On

26 January 1995 also the applicant supplemented his observations.

8. On 17 May 1995 the Commission declared the remaining complaint

admissible.

9. The text of the Commission's final decision on admissibility was

sent to the parties on 31 May 1995 and they were invited to submit such

further information or observations on the merits as they wished. No

observations were submitted.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. C.L. ROZAKIS, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

12. The text of this Report was adopted on 18 October 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's partial and final decisions on the admissibility

of the application is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

16. On 16 June 1981 the applicant, who was then the managing director

of the H. Company doing business as a car retailer, filed in the course

of an inspection of the company by tax inspectors (Betriebsprüfung) a

report (Selbstanzeige) with the Linz Tax Office (Finanzamt), in which

he incriminated himself. He stated that in 1979 and 1980 he had bought

tractors from the P. company, and that in the sales contracts and

invoices higher prices than due had been entered. The exceeding

amounts had been refunded upon payment of the invoice. He, therefore,

had claimed input tax (Vorsteuerabzüge) on value added tax without

justification.

17. On 22 November 1984 the Tax Office instituted administrative

criminal proceedings under the Code of Tax Offences (Finanzstrafgesetz)

against the applicant on suspicion of evasion of taxes and instructed

the applicant to submit a written statement on the charges raised.

18. On 23 December 1986 the applicant submitted his statement. On

2 January 1986 the Tax Office submitted the case file in the

applicant's criminal proceedings to the competent Trial Board

(Spruchsenat) at the Linz Tax Office.

19. On 24 February 1987 the Trial Board convicted the applicant of

tax evasion and sentenced him to a fine of 400.000 AS or 90 days'

imprisonment in default. It found that the applicant in 1976, 1977 and

1978 had failed to enter numerous car sales into the bookkeeping which

lead to tax evasion in the amount of AS 202.933. Moreover, between

January 1979 and April 1981 the applicant had claimed without

justification input tax of altogether 675.256 AS by making incorrect

declarations of input tax.

20. In September 1987 the applicant lodged an appeal, which only

concerned his conviction for claiming input tax without justification.

He submitted that his report of 16 June 1981 should have led to the

discontinuation of the criminal proceedings regarding this charge.

21. On 16 September 1987 the Tax Office ordered the applicant to

remedy defects of the appeal (Mängelbehebungsauftrag). On

3 November 1987 the applicant complied with this order.

22. On 18 December 1987 the applicant's appeal was transmitted to the

Upper Austria Regional Tax Authority (Finanzlandesdirektion)

23. On 16 March 1989 an oral hearing took place before the Appeals

Board (Berufungssenat) at the Regional Tax Authority on the applicant's

appeal. On 30 March 1989 a further hearing took place.

24. On 11 September 1989 the Appeals Board partially granted the

applicant's appeal and reduced his sentence to a fine of 200.000 AS and

60 days' imprisonment in default. The Appeals Board found that on

7 June 1981 a tax inspector of the Linz Tax Office had started, at the

premises of the H. Company, an examination of the Company regarding

value added tax. At that time bankruptcy proceedings had already been

opened against the company. In the course of the concluding discussion

concerning the examination (Abschlußbesprechung) the applicant had

presented his self-incriminating report. This report, however, could

not lead to the discontinuation of the proceedings, as at that time,

his offence, at least partially, had already been discovered.

25. On 6 November 1989 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof).

26. On 7 March 1990 the Constitutional Court refused to entertain the

applicant's complaint.

27. On 3 July 1990 the applicant requested that his case be referred

to the Administrative Court (Verwaltungsgerichtshof).

28. On 25 October 1991 the Constitutional Court referred the case to

the Administrative Court.

29. On 7 January 1992 the applicant supplemented his complaint to the

Administrative Court.

30. On 22 April 1992 the Administrative Court dismissed the

applicant's complaint.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

31. The Commission has declared admissible the applicant's complaint

that the criminal charges against him were not determined within a

reasonable time.

B. Point at issue

32. The point at issue is whether there has been a violation of

article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

33. Article 6 para. 1 (Art. 6-1) of the Convention, as far as

relevant, provides as follows:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law."

34. The applicant submits that the criminal proceedings against him

started on 16 June 1981 when he submitted the self incriminating

reports to the tax authorities. From that time on a criminal charge

had been raised which the authorities had to decide upon.

35. The Government submit that the proceedings at issue started when

the Tax Office on 22 November 1984 instituted criminal proceedings

against the applicant. The applicant's self incriminating report of

16 June 1981 could not be taken into account as it was up to the Tax

Office to determine whether on the submissions in the applicant's

report criminal proceedings had to be instituted. Before

22 November 1984 no criminal charge was raised against him nor was he

questioned by the authorities as suspect.

36. As regards the period to be taken into account, the Commission

recalls that "charge" for the purpose of Article 6 para. 1 (Art. 6-1)

may be defined as the official notification given to an individual by

the competent authority of an allegation that he has committed a

criminal offence. The raising of a so defined charge may occur on a

date prior to the case coming before the trial court, such as the date

of arrest, the date when a person concerned was officially notified

that he would be prosecuted or the date when preliminary investigations

were opened (Eur. Court H.R., Eckle judgment of 15 July 1982, Series A

no. 51, p.33, para. 73).

37. The Commission finds that the criteria set out in the case-law

of the Court are not met by the applicant's self incriminating report.

Accordingly, the relevant time began to run when the Tax Office

instituted criminal proceedings on 22 November 1984 and ended with the

Administrative Court's Decision of 22 April 1992. The proceedings thus

lasted for approximately 7 years and 5 months.

38. The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and having regard to its complexity, the

conduct of the parties and the conduct of the authorities dealing with

the case. In this instance the circumstances call for an overall

assessment (see Eur. Court H.R., Boddaert judgment of 12 October 1992,

Series A no. 235-D, p. 82, para. 36).

39. The applicant submits that the case was neither complex nor

necessitated lengthy investigations. Delays occurred in the

proceedings had to be attributed to the authorities, in particular, it

took more than 15 months before the Constitutional Court decided on his

request to refer his case to the Administrative Court.

40. The Government submit that delays occurred in the proceedings

were attributable to the applicant. In the proceedings at first

instance he failed for two years to submit his observations on the

charge raised against him. When he finally did so the Tax Office

referred his case without delay to the Trial Board which took its

decision speedily. Also the Constitutional Court and Administrative

Court decided speedily on the applicant's complaints. The applicant

could even have accelerated these proceedings by requesting the

transfer of his case to the Administrative Court already in his

complaint to the Constitutional Court.

41. As regards the reasonableness of the length the Commission finds

that the case was not particularly complex.

42. As regards the conduct of the applicant the Commission finds that

a delay of approximately two years may be attributed to him as in the

first instance proceedings he submitted his observations on the charges

raised against him only on 23 December 1986 while he had been

instructed by the Tax Office to do so on 22 November 1984. Though the

applicant's conduct contributed to length of proceedings it cannot

explain their overall length.

43. As regards the conduct of the authorities the Commission notes

that there are two periods of inactivity which may be attributed to the

authorities and courts, namely almost 14 months in the appeal

proceedings (18 December 1987 to 16 March 1989) and almost 16 months

in the proceedings before the Constitutional Court (3 July 1990 to

25 October 1991) which the Government failed to explain.

44. Taking the delays attributable to the authorities into account

and having regard to the overall length of approximately 7 years and

5 months, the Commission finds that the proceedings were not concluded

within a reasonable time.

CONCLUSION

45. The Commission concludes, by eight votes to six, that in the

present case there has been a violation of Article 6 para. 1 (Art. 6-1)

of the Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

(Or. English)

DISSENTING OPINION OF MM. M.P. PELLONPÄÄ,

B. MARXER, G.B. REFFI, B. CONFORTI,

C. BÎRSAN, K. HERNDL.

For the following reason we have voted against the finding of a

violation of Article 6 para. 1 of the Convention:

We find that the majority has not given sufficient weight to the

substantive delay attributable to the applicant in the proceedings (see

para. 42). This delay has to be balanced against the delays

attributable to the authorities (see para. 43). We find that in such

circumstances the overall length of the proceedings has less

significance. Balancing the delay attributable to the applicant

against the delays attributable to the authorities we conclude that

Article 6 para. 1 of the Convention has not been violated in the

present case.

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HÖFLER v. AUSTRIA

HÖFLER v. AUSTRIA